A Human Rights Bill for Scotland: consultation analysis

7. Views on: Ensuring Access to Justice for Rights-Holders

Question 27a: What are your views on the most effective ways of supporting advocacy and/or advice services to help rights-holders realise their rights under the Bill? – Please give us your views on advocacy

Open question

There were 206 responses to this question in the consultation.

Advocacy for certain groups of people

The most prevalent theme among the responses to this question discussed the need for advocacy and advice services focused on the rights of certain groups of people. More information about this theme can be found in Chapter 9, ‘General themes of the consultation responses’.

Accessibility of the services

The next most frequent theme was about the accessibility of advocacy and advice services. The theme was mostly expressed by civil society organisations, with only a few responses coming from public organisations and individuals.

The respondents who discussed the matter of accessibility highlighted the need for building a network of services that will be inclusive and available to as many people as possible. It was mentioned that advocacy and advice services could be provided through existing trusted community organisations and mechanisms. Also, the need for sufficient and inclusive digital channels of support was pointed out. At the same time, a few respondents mentioned that for different groups of people (e.g. disabled people) the existing provisions are not helpful enough, hence, reasonable adjustments should be made to the extent that this is possible.

“[…] Awareness of and the availability of timely, accessible, free, well-provisioned, and ‘disability competent’ information, advice and independent advocacy support is essential for disabled people, for routes to justice, and for the realisation of our human rights. […] Advice is frequently ‘digital by default’ yet disabled people are not all online as they cannot afford the necessary kit and connectivity and it can be inaccessible to them. […]” (Organisation – Other)

“[…] We would recommend building advocacy support through existing trusted community organisations and mechanisms, […] and for budget dedicated to improving internet resources explaining individuals’ rights and how they can be enforced. In addition, justice must be accessible at all levels, and the lived experience of people who go to court […] must be considered.” (Organisation – Other)

Funding and capacity of advocacy and advice services

The other most prevalent theme was expressing the need for adequate funding, capacity, and resources allocated for advocacy and advice services. More information about this theme can be found in Chapter 9, ‘General themes of the consultation responses’.

Summary of other emerging themes

The rest of the emerging themes were focused on elements that advocacy services need to effectively help with the realisation of the rights in the Bill. The most frequent among these themes was the request for independent advocacy services, with the respondents claiming that independence is essential for advocacy to be effective and can help with early intervention and prevention of rights infringement. Another frequent theme was the one highlighting the need for education and effective information dissemination about human rights that will reach every group of people. A significant minority of the respondents focused on the quality of the services provided and the need for specialised staff training.

Question 27b: What are your views on the most effective ways of supporting advocacy and/or advice services to help rights-holders realise their rights under the Bill? – Please give us your views on legal aid

Open question

There were 111 responses to this question in the consultation. Although this question was not intended to be included in the consultation document, it was mistakenly included in the online survey. As respondents had already answered this question in the online survey, their responses were analysed as usual and are discussed below.

Accessibility and affordability of legal aid

The most prevalent theme was the need for legal aid to become more accessible, either by making it easier to receive the right services for each case or by making legal aid more affordable. This theme emerged mostly through the responses of civil society organisations, with the responses of individuals following right after, while there were a few responses from public organisations.

The respondents raising this theme highlighted the importance of legal aid services becoming equally available to every person in Scotland who may need it, regardless of their economic, social, or ethnic background, disability status, health condition, or any other characteristics. A significant minority of the respondents mentioned that for disabled people (e.g. people who may need British Sign Language interpretation or people with learning disabilities), there are barriers to effectively accessing legal aid. Moreover, it was suggested that information regarding legal aid should be available in inclusive formats like Braille, Easy Read, and other formats. A small number of respondents mentioned that the geographic location of one’s residence should not pose a barrier to legal aid. Another point made was that the process of receiving legal aid should become less complex and more transparent in order to achieve equal access to it. In addition, a significant minority of the respondents mentioned that it is essential that legal aid is affordable so people without the necessary financial means do not get excluded from access to justice.

“[…] There should not be additional barriers for any person requesting consideration for Legal Aid. In early discussions of potential Legal Aid applications, there is no support for the cost of interpretation for BSL or other languages. If this continues, it will potentially impact access to the rights in this Bill.” (Dundee Health and Social Care Partnership)

“Justice should be accessible to all. Having legal aid allows a proportion of individuals to access this fairly. However, any costs relating to failings of human rights should be removed. […] Effective legal aid needs to be accessible in order to comply with the principles of human rights.” (Organisation – Other)

Reforming the judicial / legal aid system

The next most prevalent theme was the request of a significant minority of respondents to reform the legal aid system. The theme emerged primarily through the responses of civil society organisations and secondarily through the responses of individuals.

It was pointed out that, in order to achieve equal access to justice and uphold the human rights in the Bill, it is necessary to reform the legal aid system, while a few respondents suggested making amendments to the judicial system as well. The majority of respondents who discussed the need for reform did not make specific suggestions, but they highlighted that the reform of the legal aid system must prioritise the users (i.e. the rights-holders) and aim to address inequalities. It was also noted that the Bill is expected to increase demand for legal aid, and this makes the need for reform more imperative. A few respondents were more specific and suggested reforms like the creation of a supra-organisation body that will specialise in human rights. Another point made was that the courts should be relieved of some burden in cases where independent advocacy can provide a solution.

“[…] An updated, newly designed legal aid system which is fit for purpose and clearly aligned to the needs of citizens in Scotland is required. We would ask Scottish Ministers to consider enhancing independent advocacy services as an alternative for some to remedy through the courts. This informal mechanism would be cheaper, potentially quicker and would allow courts to focus on other matters.” (Partners in Advocacy)

“[…] simpler appeal and review procedures and various aspects of court structure and processes are also in need of attention.” (Individual)

Legal aid for certain groups of people

Another frequent theme was the one expressing the request of a significant minority of respondents for legal aid services that are context-informed and focused on the needs of certain groups of people. More information about this theme can be found in Chapter 9, ‘General themes of the consultation responses’.

Summary of other emerging themes

There were a few other themes that emerged through the responses to this question. A few respondents expressed their support for the Bill’s provisions without making any specific comment on legal aid. The remaining emerging themes focused on certain aspects of legal aid: one theme was the view of a few respondents that adequate funding and resource allocation to legal aid can make it more effective. Another theme was the need for timely and high-quality legal aid services provided to people whose rights are most at risk. On the other hand, there were a few respondents who claimed that access to legal aid should have a high threshold of requirements to avoid abuse of such services and excessive spending of public funds. Moreover, a few responses pointed out the need to limit the number of vexatious complaints, while others expressed concerns about the clarity of the Bill’s provisions.

Question 28: What are your views on our proposals in relation to front-line complaints handling mechanisms of public bodies?

Open question

There were 176 responses to this question in the consultation.

More efficient, effective, and accessible handling of complaints is required

The most frequent theme that emerged through responses discussing the complaints handling system was the need for improvement at various levels. This theme was mainly expressed by civil society organisations, while there were a few responses by public organisations and individuals.

The responses mentioning the need for improvement were focused either on the effectiveness and efficiency of the complaints handling system or on its accessibility. While a few respondents mentioned the need for improvement in general, there was a significant minority who pointed out specific issues with the processes and presented potential solutions. Regarding the effectiveness and efficiency of the system, it was mentioned that the handling of complaints must take place in a timely manner because otherwise, the alleged infringement of rights could be exacerbated. It was also mentioned that the processes should become less bureaucratic and more transparent, while front-line workers and other staff need to be properly trained and supported to handle the cases effectively. Regarding the accessibility of the complaints handling system, it was highlighted that such services must be known and available to every involved person regardless of their financial means, disability status, educational or other background, meaning that the complaints processes must become simpler and more inclusive.

“[…] Such complaint handling mechanisms should adhere to the standard of accessibility, affordability, timeliness, and effectiveness, expected from all routes to remedy. In this sense, for example, such mechanisms should seek to be: Transparent, ensuring that information about their existence is widely available, in different forms and languages, in order to ensure the population is aware of the existence of such mechanisms; Simple and not unreasonably complicated; Prompt, ensuring that there are no unwarranted delays, and guarantee that the mechanism can address urgent cases.” (Scottish Human Rights Commission)

“[…] Of fundamental importance is the need to ensure [that] as streamlined a process as possible is developed for individuals, families and carers to access complaints in ways which are not unintentionally exclusionary by any complicating mechanisms. We hear from individuals, families and carers how they simply do not engage with the system as the current complaints system can be experienced as unwieldy, bureaucratic and dissatisfying; individuals, families and carers tell us they can barely cope with managing their own situation and simply do not have the strength to pursue a complaint, at any level. The current Bill and associated infrastructure is an opportunity to improve managing access to justice for all rights holders.” (Mental Welfare Commission for Scotland)

Comments on the role of the Scottish Public Services Ombudsman

The next most frequent theme included comments that the respondents made about the role of the Scottish Public Services Ombudsman (SPSO). Although there was a question specifically on the role of the SPSO (Question 29), respondents chose to speak about the SPSO in this question, too. This theme was mainly expressed by individuals, with responses from civil society and public organisations following right next.

There was a wide range of comments regarding the SPSO, but the main element was that the role of SPSO needs to be upgraded and adapted to the new context that the Human Rights Bill will create. It was noted that the remit of the SPSO is quite often not specific enough, and her powers are too limited to deal with escalated human rights complaints. A significant minority of the respondents suggested that the SPSO should be further empowered and resourced to ensure that her work reflects the obligations in the Bill. Such actions would include the training of the staff or the power to issue ‘declarations of non-compliance’ when a specified public authority is found to not follow the updated procedures (although further clarity was requested on the matter of declarations of non-compliance). Another suggestion was to extend the SPSO’s remit to deal with complaints that are considered relevant to human rights, even if this is not explicitly mentioned in the complaints.

“[…] We agree that the SPSO’s remit should be extended to deal with complaints relating to rights under the Bill, even without the complainer specifying human rights as such. While we support the principle of the SPSO being given new powers to conduct investigations into recurrent issues it sees, resourcing must be a key consideration - bureaux across the network regularly express concerns that the SPSO and other complaints bodies are already overstretched and seem to lack the capacity to respond to the current volume of complaints being raised […]” (Citizens Advice Scotland)

Complaints handling should consider the needs of certain groups of people

Another frequent theme was the one pointing out that the complaints handling system should consider the needs of certain groups of people. More information about this theme can be found in Chapter 9, ‘General themes of the consultation responses’.

Summary of other emerging themes

Several other themes emerged through the responses to this question. The next most frequent theme was the request of a significant minority of respondents to reform the complaints handling system. A few of the respondents who raised this theme made specific suggestions like building new procedures for continuous improvement and feedback, while others simply highlighted the need for structural reform. Another emerging theme was the request for adequate funding and resource allocation to the complaints handling mechanisms. Other, less frequent themes were a general agreement with the Bill without any specific views mentioned, a request for better and more effective communication with front-line workers, and concerns that the complaints handling system is not operating effectively and transparently.

Question 29: What are your views in relation to our proposed changes to the Scottish Public Services Ombudsman’s remit?

Open question

There were 162 responses to this question in the consultation.

General agreement and support for the expansion of the SPSO’s remit

The most frequent theme was the general agreement with the proposals or explicit support for the expansion of SPSO’s remit. This theme was equally expressed by organisations (civil society and public ones) as well as individuals.

The respondents either clearly expressed their support for amending the remit of the SPSO to include the rights and duties described in the Bill or made more general and supportive statements. Most respondents mentioning this theme made some more specific comments on the role of the SPSO (as described below) even though a large minority simply provided their endorsement for the expansion and strengthening of the SPSO’s remit.

“We agree that SPSO should have an expanded remit to consider rights issues within complaints. […]” (Age Scotland and Age Scotland About Dementia Programme)

Comments on specific aspects of the SPSO’s role

The next most frequent theme came up through responses that discussed certain aspects of the SPSO’s role and expressed either agreement or concerns about some of the proposed changes to the remit and powers of the SPSO. This theme was mostly expressed by civil society and public organisations, while there were a few responses from individuals.

The comments were about the remit and powers of the SPSO and about the process of submitting complaints to it. Regarding the powers of the SPSO, the majority of respondents raising this theme supported the extension of SPSO’s remit to consider the rights in the Bill. The respondents who mentioned the power of own-initiative investigations agreed with this proposal, with only a small number of respondents expressing disagreement with or some concerns about the way this power will work in practice. The respondents who mentioned the declarations of non-compliance when a specified public authority acts incompatibly with the updated model complaints handling procedures, were in favour of such a provision. However, the ones who discussed the non-binding character of the SPSO’s recommendations were divided. A few respondents suggested that the recommendations should be binding, while a few others highlighted that the approach of non-binding recommendations would be more in accordance with the SPSO’s way of functioning and would allow for more flexible and innovative solutions to the detected issues.

When it comes to the procedure of submitting complaints to the SPSO, the respondents stressed the need for an accessible, affordable, and timely procedure. Additionally, it was mentioned that oral complaints should be accepted by the SPSO and that third parties (e.g. organisations) should be able to file complaints regarding human rights violations.

“[…] Additionally, we strongly support the suggestion of expanding the SPSO duties to include ‘initiative investigation’ powers. […]” (Organisation – Other)

“[…] We find the flexibility that a non-binding recommendation brings is beneficial in supporting innovation in finding solutions, in enabling public bodies to take ownership of the solution and supports longer-term and sustainable improvements. We have a concern that making binding recommendations, changes both the relationship with stakeholders and the role of the scheme, which would undermine these benefits. […]” (Scottish Public Services Ombudsman)

Clarity regarding the proposed changes

Another frequent theme was the one expressing the request of a significant minority of respondents for further clarity regarding the proposed changes to the SPSO’s remit. More information about this theme can be found in Chapter 9, ‘General themes of the consultation responses’.

Summary of other emerging themes

Another emerging theme was concerns about the SPSO and the complaints handling system in general. The respondents who expressed these concerns were not against the Bill but did not find the proposals regarding the SPSO particularly useful or effective, and their main argument was that public services should be improved to reduce the need for complaints in the first place. Additionally, the next emerging theme was the view that changes to the SPSO’s remit should focus on supporting certain groups of people, like disabled people (or other protected characteristics) and people who face a greater risk of rights infringement in general. The least frequent theme was the one that emerged through responses that highlighted the need for better funding and resourcing of the SPSO to increase its capacity and support it with the changes to its remit.

Question 30: What are your views on our proposals in relation to scrutiny bodies?

Open question

There were 177 responses to this question in the consultation.

General agreement and support for the proposals

The most prevalent theme among the responses to this question was support for the proposals in relation to scrutiny bodies. This theme was equally expressed by organisations (civil society and public) and individuals.

The respondents that raised this theme either expressed their support along with more specific views regarding the scrutiny bodies and the proposals, or they simply made supportive statements without making any further comments. Those who further commented on the proposals mentioned that the provisions described in the consultation document will allow for further accountability of public bodies and will ensure that human rights principles are integrated into the delivery of public services.

“We support the proposal to extend the responsibilities of Scotland's scrutiny bodies to include human rights considerations. This expansion will provide an additional layer of accountability by assessing public bodies' compliance with the provisions of the Bill. It is a positive step towards ensuring that human rights principles are actively integrated into the delivery of public services. […]” (Human Rights Consortium Scotland)

Comments on specific aspects of the scrutiny bodies’ role

The next most frequent theme emerged through responses that included the views of the respondents on various aspects of the scrutiny bodies’ role. The theme was mainly expressed by public organisations, with civil society organisations following right after, while there were also a few responses from individuals.

There was a wide range of areas and matters discussed among the responses raising this theme. One of the most common areas discussed was the collaboration and coordination among scrutiny bodies. The proposal to enable scrutiny bodies to collaborate more closely and to share information relating to human rights effectively was widely welcomed. Additionally, there were respondents pointing out that scrutiny bodies need to become more accessible to rights-holders, and the process of filing a complaint should be as simple, prompt, and effective as possible. A few respondents discussed the legal aspects of reports from scrutiny bodies and how the role of scrutiny bodies interacts with or complements the role of standard legal remedies like litigation. A small number of respondents highlighted that it should be investigated whether specific human rights obligations are met during the assessment of scrutiny bodies, even if these obligations derive from the Human Rights Act 1998 or the European Court of Human Rights (ECHR) case law. Some of the referred rights were the right to life, the right to a fair trial, the right to liberty, and the right to a healthy environment.

“The Vegan Society support these proposals in relation to scrutiny bodies, including encouraging collaboration to share human rights information, being able to work together when looking at human rights issues and identifying overlap in the human rights issues they are looking at. […]” (The Vegan Society)

“We welcome the proposals, however, we know that the current scrutiny bodies are not always accessible to rights-holders. We frequently hear from older social care users and their family members who are experiencing rights breaches or inadequate provision, but are reluctant or nervous to complain for a variety of reasons including fear of losing their space or service.” (Age Scotland and Age Scotland About Dementia Programme)

Funding, resources, and training are required for the scrutiny bodies

The next most frequent theme was the one expressing the view of a significant minority of respondents that scrutiny bodies need to be adequately resourced and supported to successfully deliver their duties as described in the Human Rights Bill. More information about this theme can be found in Chapter 9, ‘General themes of the consultation responses’.

Summary of other emerging themes

Apart from the most prevalent themes, four other main themes emerged through the responses to this question. One of those was the disagreement of a significant minority with the proposals for scrutiny bodies. Along with this theme, there was a small number of respondents who expressed their reservations and mistrust regarding scrutiny bodies. Another frequent theme was the request of a significant minority of respondents to focus on the needs of certain groups of people. These respondents mentioned that scrutiny bodies should take into account the context-specific nuances regarding the needs of groups of people like children and young people, disabled people, homeless people, minorities, women, and generally people who may face a higher risk of rights infringement. Another emerging theme was about the need for further clarity on the provisions in the Bill and their implications for every type of involved stakeholder. A few of these respondents also requested further clarity on what the definition of ‘scrutiny bodies’ is going to be and how scrutiny bodies are expected to operate in various situations. Along with this theme, a small minority of respondents expressed their concerns about potential issues and challenges that may arise with the implementation of the Bill. Such challenges could be overlaps and conflicts of duties among scrutiny bodies or legal constraints regarding the sharing of information.

Question 31: What are your views on additional powers for the Scottish Human Rights Commission?

Open question

There were 183 responses to this question in the consultation.

General agreement and support for the proposals

The majority of respondents in this question expressed their support for the proposed additional powers for the Scottish Human Rights Commission (SHRC). This theme was mostly expressed by civil society and public organisations, with a significant minority of responses coming from individuals.

Most respondents mentioning this theme expressed their support for the proposals along with more specific views regarding the additional powers of SHRC and its role, while a significant minority of these respondents only provided their endorsement without presenting specific arguments. Those who provided an explanation for their support pointed out that the Human Rights Bill will create new responsibilities and requirements, but the SHRC does not have sufficient powers to hold the authorities accountable. For this reason, the SHRC should be given additional powers to ensure that the Bill will be implemented. A few respondents explicitly supported a similar approach for the Children and Young People’s Commissioner (CYPC).

“At present Scottish human rights organisations do not hold sufficient power to effectively manage the proposed Human Rights Bill. Therefore, the Scottish Human Rights Commission (SHRC) must be given additional powers to hold the relevant authorities accountable. […]” (The Scottish Women's Convention)

Comments on specific aspects of the additional powers for the SHRC and its role

The next most prevalent theme emerged through responses that commented on specific aspects of the proposals and the role of SHRC. The theme was expressed mainly by civil society organisations, with public organisations following next. There were a few responses from private organisations or individuals.

There were various aspects discussed, with comments on the types of additional powers for the SHRC being the most common. A significant minority of respondents mentioning this theme explicitly requested a specific set of additional powers. These powers were for the SHRC to:

• Provide advice to individuals.
• Conduct investigations into specific human rights issues.
• Hold inquiries into the practices of individual public bodies.
• Monitor and scrutinise public body reports on the implementation of rights outlined in the Bill.
• Compel public bodies to provide necessary information for inquiries or investigations.
• Issue binding guidance.

A small number of respondents also asked for SHRC to be empowered to represent more voices and experiences of Scottish society, to raise legal proceedings in its own name, and to make unaccompanied and unannounced visits to any human rights duty bearer. On the other hand, a small number of respondents claimed that they were not convinced that SHRC should be allowed to raise cases or intervene in existing court cases.

Matters like the consideration of certain rights, the creation of new public bodies to ensure the protection of certain rights or groups of people and the accessibility and effectiveness of SHRC were also discussed. A small minority of the respondents commented on whether it would be beneficial to create new public bodies to ensure that the rights in the Bill will be upheld. A few respondents mentioned that it may be more beneficial to give additional powers in the proposals to new Commissioners like the ones mentioned in the SHRC’s report ‘At a Crossroads – which way now for the human rights system in Scotland?’ (e.g. Disability Commissioner, Older People's Commissioner, LGBT (Conversion Practices) Commission), while others argued that such an approach would be ineffective and would create further confusion. Additionally, a few respondents pointed out that the new powers or functions of the SHRC should focus more on the protection of rights like the right to a healthy environment, and that any new powers which relate to the right to a healthy environment should recognise Environmental Standards Scotland’s (ESS) remit to monitor the effectiveness of environmental law in Scotland. A small number of respondents stressed that the additional powers should make the SHRC more accessible, transparent, independent, and effective.

“Scotland needs its National Human Rights Institution to be authoritative and fit for purpose. […] The SHRC also cannot provide any advice or services to individuals, but NHRIs elsewhere in the UK can do so. […] We consider that additional SHRC powers should include: 1. Providing advice to individuals; 2. Conducting investigations into specific human rights issues; 3. Holding inquiries into the practices of individual public bodies; 4. Monitoring and scrutinising public body reports on the implementation of rights outlined in the Bill and requiring public bodies to implement its recommendations; 5. Compelling public bodies to provide necessary information for inquiries or investigations; 6. Issuing binding guidance […]” (Organisation – Other)

“[…] We note with interest that the consultation document mentions wider asks in relation to specific Commissioners focused on advancing the rights of specific groups and areas. […] we call for an LGBTI+ Commissioner with a broad remit for all LGBTI+ rights, rather than a narrow focus on conversion practices.” (Equality Network)

Funding, resources, and training are required for the SHRC

The next most frequent theme was expressing the view of a large minority of respondents that the SHRC must be adequately funded and resourced to deliver its new duties. More information about this theme can be found in Chapter 9, ‘General themes of the consultation responses’.

Summary of other emerging themes

There were another four themes that emerged through the responses to this question. The most frequent among those was the view of a significant minority that the additional powers in the proposals should be more focused on the needs of certain groups of people. Such groups would be disabled people, children and young people, women, LGBTI people, as well as other vulnerable groups like people experiencing homelessness, people in prison, or generally people that face greater risks of human rights infringement. The next most frequent theme was the request of a significant minority for further clarity regarding the proposals and how the additional powers for the SHRC would work in practice. It was also requested that the roles of the Scottish Human Rights Commission and the Equalities and Human Rights Commission (EHRC) be clearly distinguished. This theme was associated with another emerging theme, the concerns of a significant minority about potential issues, overlaps and conflicts of duties. These concerns were expressed by respondents who supported the proposal as well as by respondents who opposed it. The last emerging theme was the disagreement with the specific proposals. Those who disagreed argued that further enhancing the powers of quasi-autonomous non-governmental organisations could diminish the influence of the electorate and government’s accountability and that the EHRC is better suited for such duties.

Question 32: What are your views on potentially mirroring these powers for the Children and Young People’s Commissioner Scotland where needed?

Open question

There were 141 responses to this question in the consultation.

General agreement and support for the proposal

The most prevalent theme, by far, was the support of the respondents for the proposal to mirror the additional powers of the SHRC for the Children and Young People’s Commissioner Scotland (CYPCS). This theme was mostly expressed by civil society organisations, with public organisations following next. Additionally, a large minority of the responses came from individuals, and a small number of responses came from private organisations.

Most of these respondents either expressed their support without providing further comments or argued that the proposal to mirror the additional powers for CYPCS would ensure the utmost protection of children’s rights and would allow for a cohesive and comprehensive approach to human rights protection across all age groups in Scotland. A few respondents mentioned that this approach would help to maintain consistency with the content of the UNCRC (Incorporation) (Scotland) Bill^[24] and urged the Scottish Government to ensure that the provisions of the Human Rights Bill and the UNCRC (Incorporation) (Scotland) Bill are aligned.

“Just as the SHRC plays a crucial role in protecting and promoting human rights for the broader population, the CYPCS similarly advocates for the rights of children and young people. Ensuring that both institutions have comparable powers will help maintain a cohesive and comprehensive approach to human rights protection across all age groups in Scotland.” (Human Rights Consortium Scotland)

Concerns about potential issues, overlaps and conflicts of duties

The next most frequent theme was the concerns of a significant minority of respondents regarding potential issues and overlaps or conflicts of duties among the CYPCS and other public bodies. This theme was mainly expressed by public organisations, with civil society organisations following next. There were also a few responses from private organisations or individuals.

There were various potential issues discussed in the responses, with the duplication of roles and powers being the most common issue. Most respondents raising this theme supported the proposal, although there were a few respondents who either disagreed with it or did not explicitly support it. It was mentioned that the Scottish Government should focus on avoiding the duplication of powers between the CYPCS and the SHRC or other public bodies such as the Care Inspectorate, the Independent Care Review, and the SPSO. According to the respondents, this could lead to unnecessary conflicts and a more complex landscape that will mostly affect the rights-holders. For that reason, a few respondents highlighted the need for effective communication channels between the involved public bodies that would allow for better coordination and collaboration.

“Overall, we agree that it could be beneficial for the SHRC to have additional powers as outlined in the consultation. However, further discussions would need to take place with other relevant bodies or organisations and a coordinated approach would need to be taken to avoid duplication and ensure understanding of where specific responsibilities sit.” (Dundee Health and Social Care Partnership)

No further legislation is required / UK-wide matter

The next most frequent theme emerged through responses claiming that it is not necessary to mirror the powers of CYPCS and that children’s human rights are a UK-wide and devolved matter. More information about this theme can be found in Chapter 9, ‘General themes of the consultation responses’.

Summary of other emerging themes

There were a few other emerging themes among the responses to this question. The most common among them was the request of a small minority for the Bill to focus on the needs of certain groups of people. Most respondents that raised this theme agreed with the proposal but at the same time highlighted the need to safeguard the rights of various groups like young women and girls or children with certain philosophical beliefs (e.g. veganism). A few respondents pointed out the need for safeguarding the rights of children with disabilities (including learning disabilities) and children with mental health issues, and stressed that there should be provisions to ensure that the support they receive as children will not be discontinued when they reach adulthood. Along with that, a small number of responses mentioned that there should be a similar Commissioner for older people and a Commissioner for autistic people and people with learning disabilities. The next most frequent theme was the request of a few respondents for further clarity regarding the proposal for the CYPCS. It was mentioned that the term ‘mirroring these powers’ is not entirely clear, while the way that the CYPCS will interact with other public bodies and authorities was not considered perfectly clear either. The next theme was the view of a few respondents that the CYPCS would need to receive adequate funding, resourcing, and support to successfully deliver its new duties.

Question 33: What are your views on our proposed approach to ‘standing’ under the Human Rights Bill? Please explain.

Open question

There were 162 responses to this question in the consultation.

Support for the ‘sufficient interest’ test as the approach to ‘standing’

The most common theme mentioned by respondents to this question was support for the ‘sufficient interest’ test^[25] as the proposed approach to ‘standing’^[26] for civil proceedings. This theme was most commonly mentioned by civil society and public sector organisations; a significant minority who held this view were individuals.

A majority of respondents expressed support for the ‘sufficient interest’ test as a proposed approach to ‘standing’ for civil proceedings so that individuals and organisations with sufficient interest in a case will be able to raise judicial review proceedings if deemed appropriate by the courts. A large majority of respondents favoured adopting a ‘sufficient interest’ test rather than the narrower ‘victim’ test. In this way, these respondents advocated for collective approaches rather than individual action. The ‘sufficient interest’ test allows individuals and organisations to bring cases to court when they can demonstrate sufficient interest, and it also gives civil society organisations the power to raise cases on behalf of rights-holders, as opposed to the ‘victim’ test, where a person must demonstrate that they are directly affected by the breach they are alleging. Respondents emphasised the importance of avoiding undue burdens on individuals, ensuring access to justice, and promoting public interest litigation. They held the view that an inclusive approach can lead to more effective protection and promotion of human rights in Scotland. A significant minority of respondents also discussed their view on the relevance of the ‘sufficient interest’ test approach for cultural and environmental rights since they are pervasive rather than specific to an individual.

“We agree with the Scottish Government’s proposed approach that organisations with ‘sufficient interest’ should be able to bring cases. Such an approach will enable organisations to bring claims on behalf of individuals. This means that group interests may be advanced more clearly as organisations may be in a position to highlight multiple examples of similar violations. It means that responsibility for holding decision-makers to account is not left on the shoulders of those who are already experiencing the difficulties of rights violations […] and may be vulnerable to further violations or victimisation as a result of raising complaints. If a person has suffered a violation of their rights, it seems an odd approach to justice that we require them to take action by themselves and shoulder this extra burden. […]” (Just Fair)

“[…] mirroring the “sufficient interest” test in judicial review rather than the “victim” test under s.7 of the Human Rights Act 1998. The narrow “victim” test has demonstrably prevented important issues being litigated and prevented victims from securing justice.” (Public Law Project)

Support for a clear definition of ‘sufficient interest’

The second most frequent theme emphasised the necessity for clear guidance in defining ‘sufficient interest’ to guide both the courts and potential litigants. This theme was predominantly expressed by civil society and public sector organisations. A significant minority of respondents highlighted the need for explicit guidelines in court rules. They argued this would ensure transparency for both the courts and NGOs considering human rights cases as well as provide clear steers on who will be deemed to have ‘sufficient interest’. These respondents underscored that a well-defined ‘sufficient interest’ criterion is essential for individuals and organisations to navigate the legal process, fostering access to justice and strategic litigation for the protection of human rights in Scotland.

“[…] For clarification and transparency, we would encourage the Scottish Government to explicitly outline in the Bill the formulation for the sufficient interest test. This will enable people and organisations to identify if they believe they fulfil the test before investing in the resources needed to bring the case before court.” (Scottish Care)

More information about this theme can be found in Chapter 9, ‘General themes of the consultation responses’.

Accessible complaint system

The third most commonly raised theme was the need for an accessible and affordable complaint system. This theme was primarily raised by civil society organisations, with a few responses from individuals, public sector organisations, and private organisations.

A small minority of respondents indicated that the complaint system must be effective, timely, affordable, and accessible to everyone. Respondents who raised this theme stressed that access to justice should not be hindered by a lack of capacity or cost. They held the view that, given the paramount importance of human rights, it is essential for rights-holders to have an initial opportunity to seek redress with the relevant authorities. According to respondents, if this initial step does not resolve matters, the Bill should employ accessible language and provide clearer instructions to guide the process. Respondents who mentioned this theme agreed on the need to streamline and make the complaint system accessible to everyone, ensuring that procedural barriers or financial constraints do not leave anyone without a remedy.

“People and organisations should know what to do in order to challenge anything which has affected rights. Any remedy should be effective, timely, accessible, and affordable. As such, thresholds for legal intervention need to be clear and unequivocal.” (Organisation – Public)

“[…] the Bill should include accessible language and the current definition of 'sufficient interest' needs to be much more clearly explained. It also needs to be underpinned by absolute clarity on how a rights holder can raise an issue of concern, the timescales within which they can expect matters to be reviewed, and how they might obtain advocacy, advice and/or legal support. Their entitlement to any of these supports should not be affected by lack of capacity or cost.” (Dundee Health and Social Care Partnership)

Summary of other emerging themes

Another theme was the support for preserving the existing framework in which the ‘sufficient interest’ approach to standing is not extended to civil proceedings. Another theme raised by a few respondents was disagreement with applying the sufficient interest test, indicating that it might give rise to potential abuse of power and lack of transparency from public bodies. These respondents also mentioned that courts will not be able to cope with the increasing workload this approach might entail. Another theme highlighted by a small minority of respondents was the general agreement with the Bill. A few respondents emphasised the importance of making sure this Bill is in line with the UNCRC Bill and civil law. Finally, a small number of respondents highlighted the need for more clarity on: (i) the definitions regarding the scope of civil society organisations to which standing should be extended, (ii) how a rights holder can raise an issue of concern, (iii) the timescales within which they can expect matters to be reviewed, and (iv) how they might obtain advocacy, advice, and/or legal support.

Question 34: What should the approach be to assessing ‘reasonableness’ under the Human Rights Bill?

Open question

There were 132 responses to this question in the consultation.

Proportionality approach for ‘reasonableness’

The most frequently mentioned theme was support for implementing the ‘proportionality’ test^[27] as a standard of review of the reasonableness of a measure.^[28] This theme was primarily brought up by civil society organisations and a few respondents representing public organisations.

A large majority of respondents to this question favoured the ‘proportionality test’ over the ‘Wednesbury test’^[29] when assessing reasonableness. These respondents advocated for lowering the threshold for a decision-maker being found to have acted unlawfully with the aim of ensuring court remedies are accessible for rights-holders. They felt that the Wednesbury test sets strict criteria that ultimately hinder individuals' ability to challenge rights violations effectively. Respondents favoured a proportionality test, emphasising its use in the Human Rights Act 1998 and the Equality Act 2010 to provide a more balanced and structured approach. In addition to requesting a test that ensures and enhances access to justice and accountability in courts, respondents felt that implementing the proportionality approach would align Scottish law with international standards. They argued that this shift would facilitate the resolution of a greater number of potential violations and promote consistency in rights adjudication. Respondents held the view that this shift would reinforce a culture of justification in decision-making and provide effective remedies for individuals experiencing rights violations.

“[…] As the proposals recognise, the Wednesbury test of reasonableness sets a very high bar. It seems to us that it would be more appropriate to seek consistency across domestic human rights incorporation legislation and therefore, adopt the proportionality test of the Human Rights Act 1998 […].” (Scottish Association for Mental Health)

“The proportionality test seems to offer a greater chance for those who have experienced rights breaches to have the court be able to uphold them. Making the bar inaccessibly high for decisions on breaches of rights would seem to counter the overall aims of the Bill.” (Scottish Association of Social Work)

General disagreement with the Bill and support for maintaining the Wednesbury approach for ‘reasonableness’

The second most prevalent theme was general disagreement with the Bill and opposition to lowering the reasonableness approach from the Wednesbury test to the ‘proportionality’ test. This theme was primarily brought up by individuals and a small number of civil society respondents.

A significant minority of respondents voiced opposition to adopting the ‘proportionality’ test as the test for reasonableness of the standard of review. These respondents questioned the motivations behind this proposal, suggesting it might undermine the authority of the courts and introduce an administrative difficulty in decision-making. Concerns were also expressed about the prospect of an incessant stream of lawsuits. Respondents held the view that adopting the proportionality test would encourage frivolous, publicity-seeking cases, leading to a waste of court time and funds, as well as potential abuse of power. They emphasised the adequacy of current legal protections and doubted the necessity for changes. Furthermore, they emphasised that the Wednesbury test is well understood by courts and legal practitioners, requesting the Scottish Government to proceed with caution in considering a departure from this established standard. These respondents raised a concern regarding how adopting a new approach might raise budgetary and staffing constraints.

“The Wednesbury test is well understood by courts and legal practitioners. The Scottish Government should be slow to move from this standard. The proposals do not clearly identify what standard is proposed to replace the Wednesbury test. This is problematic, because a subjective assessment of what is ‘reasonable’ can vary hugely depending on the person or persons involved. An objective test is required and rights-holders have a reasonable expectation of having this fully explained to them. Changing the standard of reasonableness will require time and resourcing for public sector organisations to allow them to become familiar with the new standard and to implement this.” (Organisation – Public)

More information on general disagreement and criticisms of the Bill can be found in Chapter 9, ‘General themes of the consultation responses’.

Precision and clarity in defining 'reasonableness'

The third most prevalent theme was the request for an appropriate and detailed definition of reasonableness to be provided. A small minority of respondents emphasised the need for a detailed definition of reasonableness to avoid ambiguity and ensure consistency in judicial interpretation. They expressed concerns about the vagueness of the term, highlighting its subjective nature within the legal system. To address potential subjectivity, respondents highlighted the need for clarity when adopting a proportionality test as proposed in the consultation. Respondents suggested the use of other international models to formulate a clear and accessible definition of 'reasonableness,' which will align it with human rights principles and enhance rights-holders' access to justice. They held the view that this will ensure that any assessment of reasonableness is performed without prejudice. More information about this theme can be found in Chapter 9, ‘General themes of the consultation responses’.

Summary of other emerging themes

The next most mentioned theme is regarding further suggestions provided by respondents. A small number of respondents held the view that although the current threshold for assessing reasonableness is too high, it might be satisfactory if accompanied by improved provisions that reduce the need for litigation as a first instance. Another suggestion provided by a small number of respondents was that, independently of the approach followed, courts should implement a strict review of decisions, as well as evaluate whether the authority had complied with all procedural requirements. A small minority of respondents raised the theme of general concerns, indicating they are worried about the consultation being subjective or pointless and about the possibility the new approach might encourage abuse of power and/or spurious seeking cases leading to wasted resources. Another emerging theme encompassed the view that any potential change should be progressive, involving careful consideration of public opinion. This theme was brought up by a small minority. Respondents who mentioned this theme stressed the importance of discussing and developing assessments of reasonableness collaboratively with public authorities and rights-holders in Scotland. An additional theme mentioned by a few respondents was recommendations for other factors that should be considered in the test for assessing reasonableness. These included existing budgetary and staffing constraints, consultations carried out, and whether the public body took account of them. They endorsed the exploration of alternative routes or tests to remedy, not just judicial reviews that can only be raised in the Court of Session. Respondents expressed that this will ensure accessible, affordable, timely and effective routes to remedy. Finally, a few respondents noted that regardless of which test is decided upon or what label is given to the test, it should be the most effective to safeguard human rights.

Question 35: Do you agree or disagree that existing judicial remedies are sufficient in delivering effective remedy for rights-holders?

Closed question

There were 134 responses to this question in the consultation.

A nearly equal split of opinions was identified among respondents, with 51% of respondents disagreeing that existing judicial remedies are sufficient to deliver an effective remedy for right-holders. On the other hand, 49% of respondents expressed that existing judicial remedies are sufficient in delivering an effective remedy.

Question 36: If you do not agree that existing judicial remedies are sufficient in delivering effective remedy for rights-holders, what additional remedies would help to do this?

Open question

There were 104 responses to this question in the consultation.

Existing judicial remedies are not sufficient

The most frequent theme mentioned by respondents was that existing judicial remedies in Scotland are insufficient in delivering effective remedies for rights-holders. This theme was primarily mentioned by civil society organisations, while there were a few responses from individuals and public sector organisations.

A majority of respondents expressed dissatisfaction with the existing judicial remedies, highlighting their inadequacies in addressing the diverse needs of rights-holders. They emphasised that structural and systemic barriers within the legal system hinder rights-holders from accessing courts efficiently. In this sense, these respondents mentioned the need to ensure judicial remedies that are tailored to suit the circumstances and rights of every person, as well as align with international human rights standards. They stressed the need for judicial remedies to be timely, effective, and affordable. They also emphasised that the right to an effective remedy should be explicitly stated in the Bill, as well as the provision of financial and legal aid to rights-holders.

“We agree that existing judicial remedies are generally insufficient in delivering effective remedies for rights-holders. While the current remedies may address some rights violations, they do not cover the full range of human rights abuses, especially systemic or structural issues. There is a need for more comprehensive and flexible remedies to ensure justice for all rights-holders. […].” (Human Rights Consortium Scotland)

“[…] the Bill must include the substantive international human right to an Accessible, Affordable, Timely and Effective remedy for breach of the rights contained in the Bill. Incorporation of the right to an effective remedy will ensure a connection to international standards on access to justice, which will continue to evolve and be elaborated upon. […].” (East Ayrshire Advocacy Services)

Support for remedies for non-repetition

The second most frequently mentioned theme was the support to implement remedies (or guarantees) of non-repetition of the breach. Particular emphasis was placed on structural interdicts, which is a specific type of remedy.^[30] This theme was most commonly mentioned by civil society organisations, as well as a small number of individuals and public sector organisations.

Most respondents who supported the implementation of remedies for non-repetition expressed that structural interdicts are a sufficient, effective, and internationally recognised judicial remedy for rights-holders. Respondents advocated integrating structural interdicts into the legal framework as a tool to address systemic issues and ongoing rights violations, as well as to ensure the enforcement of rights in a more comprehensive and flexible manner. Those who further explained this perspective also emphasised the advantage that when guarantees of non-repetition effectively thwart potential violations, individuals no longer need to pursue legal action. These respondents highlighted the importance of the proactive nature of structural interdicts, reducing the necessity for individuals to engage the judicial system to secure their rights in the face of anticipated harm. A small number of respondents mentioned they support structural interdicts because these remedies can address systemic issues without depending on a single individual. They highlighted that these remedies provide rights-holders and their advocates with multiple avenues to instigate enduring, structural changes, thereby making a substantial impact on a wider spectrum of people.

“[…] CEMVO Scotland welcome the inclusion of structural interdicts remedies to bring justice for different people on different rights. This will allow systemic issues to be brought to court without relying on one individual, recognising the trauma that this may cause. […].” (CEMVO Scotland)

“[…] We are, however, supportive of the proposal to use structural interdict as a form of remedy. The proposal on ‘Guarantees of Non-Repetition’ provides the rights-holder and/or their advocates with various opportunities to create longer-lasting, structural change with a significant impact on a wider range of people. We can envisage such a route being of use with respect to serious and ongoing rights violations […].” (National Autistic Society Scotland)

Other proposed judicial remedies

The third most common theme mentioned in responses to this question was the proposal of additional judicial remedies that could be implemented in Scotland. This theme was mentioned by a significant minority of respondents who answered this question and mainly brought up by civil society organisations, with a few responses from individuals and the public sector.

Respondents recommended additional judicial remedies that could be implemented in the Scottish legal framework with the aim of creating a swift and low-cost process for legal redress. These included rehabilitation, compensation, restitution, satisfaction, and mediation. The most popular judicial remedy respondents proposed was compensation to mitigate losses and prevent discontent of rights-holders regarding the judicial process. Respondents mentioned that compensation could be used to ensure the recognition of the impact of rights infringements and incentivise public bodies to prioritise rights. The second most popular judicial remedy proposed by respondents was rehabilitation. They typically held the view that rehabilitation remedies are particularly important in cases where human rights violations result in medical or psychological harm, given the traumatic effects they can have on rights-holders. Respondents suggested that rehabilitation can include medical and psychological care, as well as legal and social services to repair the human rights violation caused. A small number of respondents also noted that experiencing traumatic interactions involving human rights violations can lead individuals to become sceptical about their capacity to persist in the pursuit of justice, which is why rehabilitation is essential. The third most popular additional judicial remedies recommended by a small number of respondents were restitution and the provision of legal aid. Other judicial remedies mentioned by respondents included satisfaction (including public apology, sanctions, and amendments to educational materials), mediation and hybrid remedies.

“[…] We consider that the Bill should provide a suite of tailor-made remedies available to judges which include, but go beyond, those available for administrative judicial review, such as restitution, rehabilitation, satisfaction and guarantees of non-repetition (structural interdicts).” (Individual)

“[…] While the Scottish Courts are currently able to issue a wide range of remedies, two specific types of remedies – expected as part of international legal standards – are not available. The first of these is the Measures to Rehabilitate. This can include medical and psychological care as well as legal and social services that might be necessary to repair the human rights violation caused. This is, at times, essential given the traumatic effects that human rights violations can have on victims. This was echoed in our session with people living on low incomes who noted that mental health struggles and previous traumatic interactions with human rights violations can make people sceptical of their ability to persevere in seeking justice. It was considered critical that people were offered support for this to achieve justice. […].” (Poverty Alliance)

Summary of other emerging themes

Another emerging theme was the view that courts should provide rights-holders with the opportunity to decide on the remedies they are granted while pursuing legal action when an infringement of human rights has been found. This theme was raised by a few respondents. Additionally, a few respondents proposed that the Bill should adopt a comprehensive approach to remedies similar to the ones from the Human Rights Act 1998 and the UNCRC in the Scottish system. In this way, according to respondents, courts would be required to grant a remedy that is considered effective, just, and appropriate for rights-holders.

Question 37: What are your views on the most appropriate remedy in the event a court finds legislation is incompatible with the rights in the Bill?

Open question

There were 111 responses to this question in the consultation.

Support for courts to have the power to ‘strike down’ legislation and issue declarators of incompatibility

The most frequently mentioned theme in this question was the support for courts to have the power to either ‘strike down’ legislation that is incompatible with the Bill or recommend changes to it. The majority of responses were brought up by civil society organisations, with only a few individual respondents and a small number of private and public sector organisations mentioning this theme.

A large majority of respondents held the view that courts should possess the authority to ‘strike down’ legislation or issue declarators of incompatibility when Acts of the Scottish Parliament are not aligned with the rights outlined in the Bill. These respondents emphasised that this approach is considered a robust remedy for ensuring that legislation complies with human rights standards provided in the Bill. This way, it can be remedied immediately with the aim of preventing further rights violations. A small number of respondents also conveyed that declarators of incompatibility should only be issued as long as they do not overstep on devolved matters.

“Courts should be able to ‘strike down’ laws or issue declarators of incompatibility where Acts of the Scottish Parliament are not compatible with rights in the Bill. This approach upholds the non-negotiable foundation of human rights in law and reinforces the principle that no legislation should ignore or violate these fundamental rights.” (Organisation – Other)

General disagreement with the Bill

The second most frequently mentioned theme was a general disagreement with the Human Rights Bill. More information about this theme can be found in Chapter 9, ‘General themes of the consultation responses’.

New legislation should be compatible with the existing rights

The third most commonly mentioned theme was the view that any legislation passed in Scotland should, from the very beginning, be compatible with the already existing rights. This theme was mainly mentioned by civil society organisations, although a small number of individual respondents also mentioned this theme.

A few respondents advocated that any new legislation should align with the rights outlined in the Bill, and if it does not, then it should be withdrawn. These respondents also highlighted that the Scottish Parliament legislation should comply with the European Convention on Human Rights. Respondents who held this view were also commonly in support of courts 'striking down' law that is found to be incompatible with the rights in the Bill. A small number of respondents who emphasised the necessity for legislation to be compatible with existing rights also suggested implementing an interpretative provision of the Scottish Parliament legislation to ensure its compatibility with the Human Rights Bill. Among these respondents, a small number held the view that this interpretative provision should apply to both individual cases and systemic considerations.

“All Scottish legislation should comply with the Human Rights Bill and so there should never be legislation passed by the Scottish Parliament which ignores or tramples on human rights. Currently the Scottish Parliament legislation must comply with the European Convention on Human Rights, and if it does not, courts can ‘strike down’ part or all of that law or require amendments […].” (Women’s Support Project)

Summary of other emerging themes

General agreement with the Bill was commonly mentioned among respondents. Another emerging theme was the view that there should be a provision giving time to the Scottish Government and Parliament to consider how best to align incompatible legislation with the Bill before any declaration or strike-down takes effect. Another theme mentioned included the view that when there is an incompatibility between the Bill and existing legislation, it should be referred back to Parliament for consideration rather than being altered directly by the courts. Concerns about the potential abuse of power if courts are given the power to strike down legislation was another theme identified. Additionally, a small number of respondents held the view that the outcome of the UNCRC Bill reconsideration process is necessary before providing suggestions for a consistent way forward. Finally, a small number of respondents suggested setting a time limit on incompatible legislation, which is automatically repealed if there is no government intervention to replace it.